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HomeMy WebLinkAboutAdditional Backup Documents from Agenda Office..Title A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), 2 AUTHORIZING THE CITY MANAGER TO NEGOTIATE A LICENSE AGREEMENT ("AGREEMENT") BETWEEN THE CITY OF MIAMI ("CITY") AND IN-TELLIGENT, LLC. (TN- TELLIGENT"), FOR THE PROVISION OF IN-TELLIGENT'S APPLICATION PLATFORM FQR TRANSMITTING EMERGENCY ALERTS TO THE COMMUNITY AT NO COST TO THE C,IFY; FURTHER DIRECTING THE CITY MANAGER PRESENT A NEGOTIATED AGREEMENTY°(N A FORM ACCETABLE TO THE CITY ATTORNEY, WITHIN SIXTY (60) DAYS OF THE ADOPTION OF THIS RESOLUTION. ..Body WHEREAS, the City of Miami ("City") is committed to being ever ready to respond to emergency situations and conditions and advise the community accordingly; and WHEREAS, in order to advise the community of emergency situations and conditions, the City desires to keep pace with the most advanced technology that implements "push notification" technology on cell phones to ensure timely dissemination of detailed emergency alerts; and WHEREAS, In-telligent. LLC (`In-telligent") possesses and maintains a proprietary mobile application platform (`Platform") and a web -based, password -protected application ("portal") which can be utilized by the City to provide alerts to the community directly on individuals' cell phones. which can be utilized by users to provide relevant information to the City, and which contains other information gathering and notification systems which are customizable by the users; and WHEREAS, the City Commission desires to authorize the City Manager to negotiate a license Agreement ("Agreement"). in a form acceptable to the City Attorney, with In-telligent for the purposes described herein; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Manager is hereby authorized' to negotiate the Agreement, in a form acceptable to the City Attorney, for the purpose of implementing the Platform, as more particularly described in the Agreement. Section 3. The City Manager is further directed to present a negotiated Agreement, in a form acceptable to the City Attorney, within sixty (60) days of the adoption of this Resolution. Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.' 1 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. Z If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. I I - Adicti ,( ordatoik_ -Toni CAUL LICENSE, USE, AND REVENUE AGREEMENT This LICENSE, USE, AND REVENUE AGREEMENT ("Agreement") is made and entered into as of this day of , 201_ ("Effective Date") by and between: • IN-TELLIGENT LLC ("In-telligent"). located at 15255 South 94th Avenue. Suite 547, Orland Park, Illinois, 60462; and • CITY OF MIAMI, located at 3500 Pan-American Drive, City of Miami, Florida 33133 ("Lessee"). e:a I. RECITALS WHEREAS, Lessee desires to create and provide relevant information and critical alerts (:_::4Alert to __ its employees, visitors and other subscribers (collectively the "Users') in certain communitiki'mianaged, and/or otherwise controlled by Lessee (collectively, the "Community" or "Communities"); alit' -J r= :- WHEREAS, In-telligent possesses and maintains a proprietary mobile application platf`6rnr(•ithe "Platform") and a web -based, password -protected application (the "Portal") which can be utilized by Lessee to provide Alerts to Users, which can be utilized by Users to provide relevant information to Lessee, and which contains other information gathering and notification systems which are customizable by the Users (the "Purposes'). The Platform and the Portal are hereinafter collectively referred to as the "Product". WHEREAS, Lessee desires to utilize the Platform and the Portal and In-telligent desires to provide licensed access to the Platform and Portal. NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual covenants and promises contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each Party to the other, the Parties intending to be legally bound, agree as follows: II. AGREEMENT 1. Recitals Incorporated. The foregoing Recitals shall be considered a part of this Agreement, and the recitals shall be binding on the Parties. 2. Binding on Related Individuals and Entities. The provisions of this Agreement shall be binding upon, and inure to the benefit of the Parties, as well as their respective heirs, administrators, executors, successors, assigns, agents, representatives, officers, directors, shareholders, servants, employees, attorneys, successors, parents, subsidiaries, divisions, and affiliates. 3. Term. 3.1. This Agreement commences on the Effective Date and continues for a term of ten (10) years (the "Term '). with automatic one-year Term extensions, unless either Party IN-TELLIGENT LLC LICENSE, USE AND REVENUE AGREEMENT Page 1 of 6 gives written notice of termination to the other Party not less than ninety before the end of the then current term. T' 3.2 Notwithstanding the foregoing, either Party may terminate this Agreement (Apon the occurrence of any material breach of this Agreement, which breackii not-etred within thirty (30) days after receipt of written notice of said material breach; or (4) in the event either Party is declared bankrupt or insolvent, or makes an assigdiient fo'the benefit of its creditors, or if a receiver is appointed or any proceedings are c;orttned, voluntarily or involuntarily, by or against either Party under any bankruptcy-rsin.ftrar law and not dismissed within sixty (60) days. 4. Obligations of In-telligent. e days 4.1. Availability of Product. Pursuant to and limited by the terms set forth in this Agreement, In-telligent will grant Lessee a non-exclusive, non -transferable, non- sublicensable, temporary right and limited license to access and use the Portal, without modification, in order to generate Alerts and tailor content for Users within a geolocationally-controlled community organized by Lessee. The Product will be accessed by the Users via the Platform, a mobile device application. or "app", downloaded to the User's mobile device. 4.2. Customer Service / Technical Support / Training. In-telligent will provide customer service and technical support to the Lessee via a telephone help desk (the "Help Desk") for problems with the Product, and will use commercially reasonable efforts to staff the Help Desk from 8:00 AM until 8:00 PM CST on each business day during the Term. In-telligent will further provide initial training to Lessee and/or it's designated Operators (as defined in Section 5.1 below) regarding the operation of the Product and use of the Portal. 5. Obligations of Lessee. 5.1. Authori_ed Users. Lessee will designate individuals to act as Lessee's In-telligent operators (the "Operators"). The actions and/or omissions of the Operators shall be the sole responsibility of Lessee. Access to the Portal on behalf of Lessee will be limited to the designated Operators, and it shall be the sole responsibility of Lessee to ensure that access to the Portal is secure and limited to the Operators, and that the Operators are trained as to the use of and restrictions upon the Portal. 5.2. Lessee Responsibilityfor Alert Content and Management. Lessee is solely responsible for the preparation and distribution of the Alerts, including all aspects of the content of each Alert created by the Lessee and distributed via the Product by the Lessee's Operators. In-telligent is not responsible for training or instructing Lessee or its Operators as to A) the content of Alerts, B) the decision whether to send Alerts, and C) whether any scenario is a critical emergency. 5.3. Receipt and Use of Communications from Users. Lessee acknowledges that, in addition to providing Alerts to the Users, the Product allows for Users to communicate with Lessee regarding critical and other relevant information. Lessee further acknowledges that it (through its Operators) will use commercially reasonable efforts IN-TELLIGENT LLC LICENSE, USE AND REVENUE AGREEMENT Page 2 of 6 to receive said communications from Users and will use commercially reasonable efforts to prepare and distribute Alerts, if warranted reflecting the content of said information. 5.4. Promotion of the Platform. Lessee acknowledges that by providing the services associated with the Product to Lessee free of charge, In-telligent is undertaking significant risk and is investing significant resources, amounts, and costs in the development and maintenance of the Product. Accordingly, Lessee will cooperate with In telligent to,promote the download and use of the Platform by the Users within the Community. 5.5. Security of Infrrrnation. Lessee acknowledges and agrees that it may become aware of identifying, personal, business, or financial information for Users and for In-telligent through the use of the Product, and further acknowledges, agrees, and warrants that it will maintain the confidentiality and security for any and all such information of which it may become aware through the use of the Product. Lessee is solely responsible for all employees, agents, representatives, and Operators that use or have access to the Product or to their computer systems upon which the Product is being utilized by Lessee, and for ensuring that such individuals maintain privacy and security measures with regard to the Product, the Users, the Alerts, and the information utilized and maintained within the Product. Lessee agrees that it is solely responsible for its computer systems and for taking any measures that are necessary to maintain the privacy and security of any information as outlined in this Section. 6. Proprietary Rights. 6.1. Ownership. All right, title, and interest, including but not limited to any copyright interests and any other Intellectual Property Rights (defined below) in and to the Platform, the Portal, the Product, any software and other digital products produced or provided by In-telligent under this Agreement (collectively, "Work Product") shall be the property of In-telligent. For the purposes of this Agreement, "Intellectual Property Rights'' means any patent, trademark, registered design, trade secret, or any application for registration of the same, any copyright or related rights (including copyright in the HTML source code), database right, design right, rights in trade, business, or domain names, rights in trade dress, rights in inventions, rights in confidential information, user lists or know-how or any similar or equivalent rights in any part of the world. 6.2. Lessee License. During the Term and provided the Lessee is in compliance with all of the terns and conditions of this Agreement, the Lessee shall have the nonexclusive, nonassignable, royalty -free right and license to use the Work Product (for software, use shall be by machine-readable form only) throughout the Lessee's organization subject to any and all limitations set forth in this Agreement. 6.3. In-telligent Limited Logo and Trademark License. Subject to the terns and conditions in this Agreement, Lessee grants In-telligent a non-exclusive, non -transferable, non- sublicensable right and license to use its naive and affiliated descriptive marks and logos on In-telligent's website and in its presentation and/or advertising materials.,,, IN-TELLIGENT LLC LICENSE, USE AND REVENUE AGREEMENT Page 3 of 6 6.4. No Implied License. Except for the limited rights and license expressly granted hereunder, no other license is granted, no other use is permitted and In-telligent shall retain all right, title, and interest in and to the Product (and all patent rights, copyright rights, trade secret rights, and all other intellectual property and proprietary rights embodied therein). 7. Revenue Sharing. Licensee shall be entitled to fifty percent (50%), paid quarterly, of In- telligent's net revenue attributed to the Licensee's users use of the application. For purposes of this agreement, net revenue equals the advertising revenue generated by In- telligent after deduction of all taxes, fees, and direct expenses incurred by In-telligent in the collection and determination of said revenue. For the purpose of this Agreement and this specific Subsection, direct expenses shall include only the expenses directly incurred by In-telligent in generating said revenue and shall exclude In-telligent's general operating expenses. Lessee acknowledges that, just like the Product, In-telligent's system for developing, tracking, and computing Inventory Revenue is proprietary, and therefore all terns of this Revenue Sharing Program, including the percentages and amounts allotted to the licensee, must be kept strictly confidential by Lessee. 8. Restrictions. Except and only to the extent expressly specified in this Agreement, Lessee shall not (a) use any portion of the Product or its exposure to the Product to create any software, content, or documentation that is similar to the Product, (b) disassemble, decompile, reverse engineer, or otherwise try to discover any source code or underlying structures, ideas or algorithms of the Product, (c) sell, encumber, lease, sublease, rent, loan, sublicense, transfer, or distribute the Product, the Confidential Information, or any portion thereof, (d) copy (except for the creation of a back-up copy and only to the extent that such creation is expressly authorized by applicable statutory law, and in such instance, subject to In -tell igent' s retention of any and all proprietary rights markings on the Product), adapt, merge, create derivative works of, translate, localize, port, or otherwise modify the Product, (e) use the Product in an automated process, (f) use the Product, or allow the transfer, transmission, export, or re-export of all or any part of the Product or any product thereof, in violation of any laws or regulations of the United States or any other relevant jurisdiction, (g) provide, disclose, divulge, or make available to, or permit use of the Product or any portion thereof by any third party without In-telligent's prior written consent, or (h) permit any third party to engage in any of the foregoing proscribed acts. 9. Confidentiality. As a result of this Agreement and the relationship between the Parties, In-telligent and Lessee may view and or have access to certain confidential and proprietary information about the other. including but not limited to information regarding each Party's respective business, designs, intellectual property, employees, computers and networks, marketing, clients, finances, operations, and other confidential information ("Confidential Information"). The Parties agree to hold such Confidential Information in strict confidence, to take all reasonable precautions to protect such Confidential Information, and not to make any use of such Confidential Information except to operate the Product and conform to this Agreement. Except as may be required by law, each of the Parties agree not to disclose to any third party (other than advisors who have a reasonable need to know, such as a Party's, lenders, attorneys, and accountants) the terms of this Agreement except either Party, under confidentiality, may disclose this Agreement to any non-comRititor".„, party that is a bona fide potential strategic investor in the context of and stric4 for dtzl V Page d of 6 , i• -; `i IN-TELLIGENT LLC LICENSE, USE AND REVENUE AGREEMENT diligence purposes. The Parties further agree to keep the terns of this Agreement confidential. 10. Representations and Warranties. THIS IS THE FULL EXTENT OF WARRANTIES PROVIDED UNDER THIS AGREEMENT, AND IN-TELLIGENT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES. THESE WARRANTIES ARE IN LIEU OF ANY OTHER EXPRESS AND ALL IMPLIED OR STATUTORY WARRANTIES OF ANY KIND. PLEASE NOTE: WITHOUT LIMITING THE FOREGOING, IN- TELLIGENT BEARS NO RESPONSIBILITY FOR SENDING OR DETERMINING THE CONTENT OF ANY ALERT. DUE TO THE NUMEROUS FACTORS THAT COULD IMPACT THE DELIVERY OF AN ALERT OR ANNOUNCEMENT, IN-TELLIGENT DOES NOT AND CANNOT GUARANTEE THAT THE ALERT OR ANNOUNCEMENT WILL REACH ITS INTENDED AUDIENCE. IN-TELLIGENT BEARS NO RESPONSIBILITY AND DISCLAIMS ANY LIABILITY FOR THE FAILURE OF AN ALERT OR ANNOUNCEMENT TO REACH ANY PERSON. 11. Indemnification and Liability Limitations. 11.1. Lessee's Defense and Indemnification ofIn-telligent. Lessee shall defend, indemnify, and hold harmless In-telligent (as well as its subsidiaries, owners, members, affiliates, officers, agents, partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by In-telligent as a result of any claim, judgment, or adjudication against In-telligent related to or arising from, directly or indirectly, the use of the Product by Lessee and'or its Operators, the content of the Alerts or information used to form the Alerts, or any violation of this Agreement. 11.2. Limitation on Liahilih•. In no event will In-telligent be liable for any indirect, incidental, special, consequential, punitive, or similar damages to Lessee, including, but not limited to, lost profits and loss of data. 12. Non -Exclusive. The Parties acknowledge and agree that the procurement of services under this Agreement and Lessee's limited use and license will be on a non-exclusive basis, and that In-telligent may make the Product available to any other entities or third parties at its sole discretion. 13. General Provisions. 1 ; .1. \"otice. Any notice required or permitted by this Agreement shall be in writing and shall be delivered during normal business hours of the Party receiving the notice by: (a) personal delivery; (b) trackable delivery; (c) facsimile; or (d) electronic mail. 13.2. Assignment. Lessee shall not assign any of its rights or delegate any of its duties under this Agreement without the prior written consent of In-telligent. 13.3. Sev•erahilih•. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid, or IN-TELLIGENT LLC LICENSE, USE AND REVENUE AGREEMENT Page 5 of 6 unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. 13.4. Interpretation. Each Party acknowledges that this Agreement has been the subject of active and complete negotiations, and that this Agreement should not be interpreted or construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation of this Agreement. 13.5. Gorernina Lair: Forum; Legal Fees. This Agreement shall be governed by the laws of the State of Illinois without reference to conflicts of law provisions. Lessee irrevocably consents to the personal jurisdiction of the federal and state courts located in Chicago, Illinois, for any matter arising out of or relating to this Agreement. If a lawsuit or proceeding is commenced by In-telligent to enforce this Agreement, In-telligent shall be entitled to receive its reasonable attorne} s' fees, expert witness fees, and costs incurred in connection with such proceeding, in addition to any other relief to which such prevailing Party may be entitled. 13.6. Entire Understandinz.. This Agreement supersedes all prior discussions and writings and constitutes the entire agreement between the Parties with respect to the subject matter hereof. No waiver or modification of this Agreement will be binding upon either Party unless executed in writing and signed by a duly authorized representative of each Party and no failure or delay in enforcing any right will be deemed a waiver. This Agreement will not be modified, amended, or in any way altered except by an instrument in writing signed by the Parties. 13.7. Counterparts. This Agreement may be executed in two or more counterparts and by facsimile, digital or other electronic signatures. IN WITNESS `'HEREOF, the Parties hereto have executed this Agreement effective as of the later of the dates set forth below. IN-TELLIGENT LLC LESSEE Signature Signature Print Name Print Name Title Title Date Date IN-TELLIGENT LLC _. LICENSE, USE AND REVENUE AGREEMENT Page 6 of 6 •